Stacy Evans v. Estate of Earl J. Cordier, Jr. (2006)

MEMORANDUM OF DECISION RE Motion for Summary Judgment # 114 Short Calendar, February 22, 2016

The defendant moves for summary judgment on the ground that there is no genuine issue of material fact because the defendant had no actual or constructive notice of the allegedly defective condition that caused the plaintiff's injury.

On October 1, 2014, the plaintiff, Stacy Evans, filed a complaint against the defendant, Estate of Earl J. Cordier, Jr. (the Estate).  In the complaint, the plaintiff alleges the following facts.  The plaintiff was an invitee at 17 Country Club Road, Dayville, Connecticut (the premises) upon which a residential building is located.  At all relevant times, the defendant was the owner of the aforementioned premises.  On or about October 24, 2012, the plaintiff was walking on a wooden deck attached to the home on the premises and fell through the wooden decking sustaining injuries.  The plaintiff alleges that the deck was in a dangerous, defective, and decayed condition, causing the plaintiff's fall.

Further, the complaint alleges that the plaintiff's injuries were proximately caused by negligence of the defendant in that:  “the deck was and for a long time out of repair, and was in a dangerous and defective condition, the boards were worn, decayed, and weak ․ the defendant negligently and carelessly permitted the deck to be and remain in an unsafe, dangerous and defective condition ․ the defendant failed to reasonably repair or remedy an unsafe, defective or dangerous condition ․ [and] the defendant failed to reasonably inspect the premises to discover the defect or want of repairs.”  As a result of the defendant's alleged negligence, the plaintiff suffered injuries and seeks damages.

On December 21, 2015, the defendant filed a motion for summary judgment and a memorandum of law in support of their motion.  The plaintiff filed an objection to the defendant's motion for summary judgment and a memorandum in opposition on January 29, 2016.  The defendant submitted a reply memorandum on February 17, 2016.  The matter was heard at short calendar on February 22, 2016.

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried ․ However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury ․ the moving party for summary judgment is held to a strict standard ․ of demonstrating his entitlement to summary judgment.”  (Citation omitted;  footnote omitted;  internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534–35, 51 A.3d 367 (2012).

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.”  (Internal quotation marks omitted.)  Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319–20, 77 A.3d 726 (2013).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist.”  (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).

“Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  (Internal quotation marks omitted.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).  “Summary judgment procedure is especially ill-adapted to negligence cases, where ․ the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ․ [T]he conclusion of negligence is necessarily one of fact ․” (Citations omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Coiin. 431, 434, 362 A.2d 857 (1975).  However, “[t]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.”  (Internal quotation marks omitted.)  Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).  “[O]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.”  Sic v. Nunan, 307 Conn. 399, 407, 54 A.3d 553 (2012).

The defendant moves for summary judgment on the ground that there is no disputed issue of material fact because the Estate had no actual or constructive notice of the defective condition alleged by the plaintiff.  Moreover, the defendant claims that the plaintiff's own testimony establishes that the Estate had no actual or constructive notice of the precise defect that allegedly caused the plaintiff's injuries.  The plaintiff counters that the defendant has failed to meet its burden of proof and, alternatively, that there is a genuine issue of material fact as to whether the defendant had constructive notice of defect.

“[I]n the context of a negligence action based on a defective condition on the defendant's premises, [t]here could be no breach of the duty resting upon the defendants unless they knew of the defective condition or were chargeable with notice of it ․” (Internal quotation marks omitted.)  Riccio v. Harbour Village Condominium Ass'n, Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007).¹  Accordingly, “[f]or [a] plaintiff to recover for the breach of a duty ․ it [is] incumbent upon [him] to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused [his injury] or constructive notice of it ․ [T]he notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of conditions naturally productive of that defect even though subsequently in fact producing it.”  (Internal quotation marks omitted.)  DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116–17, 49 A.3d 951 (2012).

“The controlling question in deciding whether the defendants had constructive notice of the defective condition is whether the condition existed for such a length of time that the defendants should, in the exercise of reasonable care, have discovered it in time to remedy it.”  (Internal quotation marks omitted.)  Riccio v. Harbour Village Condominium Ass'n, Inc., supra, 281 Conn. 163.  Additionally, “[w]hat constitutes a reasonable length of time is largely a question of fact to be determined in the light of the particular circumstances of a case.”  (Internal quotation marks omitted.)  Id., 163–64.

In the present case, the defendant has failed to meet the burden that would entitle them to summary judgment.  “To prevail on a motion for summary judgment ․ the defendant ha[s] an obligation to negate the factual claims as framed by the complaint.  To that end, it [is] incumbent on the defendant to provide the court with more than its belief that it [is] readily evident that the plaintiff ultimately would be unable to meet his obligation at trial to produce evidence to prove that the defendant had actual or constructive notice of the alleged defect.  In other words, before the plaintiff ․ acquire[s] any obligation to produce evidence that would tend to show that the defendant, in fact, had notice of the defect, the defendant ha[s] the burden of producing evidentiary support for its assertion that its lack of notice [is] an undisputed fact.”  Mott v. Wal–Mart Stores East, L.P., 139 Conn.App. 618, 628, 57 A.3d 391 (2012).

In support of its argument, the defendant submitted a memorandum of law, portions of the plaintiff's deposition testimony, and an affidavit of Estate representative Roy W. Randolph.  The defendant specifically points to the plaintiff's deposition testimony in arguing that the Estate was without constructive notice of the alleged defect.²  Moreover, the defendant relies on Randolph's affidavit to establish that when representatives of the Estate inspected the premises some fourteen months before the plaintiff's fall there was no knowledge of any defect or decay to the deck.

However, the evidence provided is not enough to shift the burden to the plaintiff.³  The plaintiff's complaint alleges that the deck was in dangerous, defective, and decayed condition.  The aforementioned condition of the deck caused the plaintiff to fall through the deck and the plaintiff was injured.  The defendant has not submitted sufficient evidence that it was without notice of the alleged defect.  Randolph's affidavit indicates that in August of 2011 he, as a representative of the estate, inspected the premises, but there is nothing to indicate that the alleged defect did not exist for such a length of time that it could not have reasonably been discovered.  Therefore, there is a genuine issue of material fact as to whether the Estate had notice of the alleged defect.

For the aforementioned reasons, the defendant's motion for summary judgment is denied.

THE COURT

CALMAR, J.

FOOTNOTES

FN1. It should be noted that, “[t]he essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ As to the first element, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee ․ In particular, [a] business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land ․” (Citations omitted;  internal quotation marks omitted.)  Perrone v. Sutfin, Superior Court, judicial district of New Haven, Docket No. CV–l0–6007487–S (August 16, 2011, Zoarski, J.T.R.) [52 Conn. L. Rptr. 439].  In the present case, the plaintiff was hired by the Estate to conduct repairs upon the premises..  FN1. It should be noted that, “[t]he essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ As to the first element, there is an ascending degree of duty owed by the possessor of land to persons on the land based on their entrant status, i.e., trespasser, licensee or invitee ․ In particular, [a] business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land ․” (Citations omitted;  internal quotation marks omitted.)  Perrone v. Sutfin, Superior Court, judicial district of New Haven, Docket No. CV–l0–6007487–S (August 16, 2011, Zoarski, J.T.R.) [52 Conn. L. Rptr. 439].  In the present case, the plaintiff was hired by the Estate to conduct repairs upon the premises.

FN2. The defendant, in part, argues that because the plaintiff, who was hired to clean and repair the premises saw no indication of damage to the deck, the Estate cannot be said to have notice of the defect..  FN2. The defendant, in part, argues that because the plaintiff, who was hired to clean and repair the premises saw no indication of damage to the deck, the Estate cannot be said to have notice of the defect.

FN3. The court notes that the present motion is a motion for summary judgment, and not a situation involving a directed verdict, which would require a procedurally dissimilar burden.  See Lussier v. Sun Valley Camping Cooperative, Inc., Superior Court, judicial district of Tolland, Docket No. CV 13–6006595–S (April 23, 2014, Mullins, J.)..  FN3. The court notes that the present motion is a motion for summary judgment, and not a situation involving a directed verdict, which would require a procedurally dissimilar burden.  See Lussier v. Sun Valley Camping Cooperative, Inc., Superior Court, judicial district of Tolland, Docket No. CV 13–6006595–S (April 23, 2014, Mullins, J.).

Calmar, Harry E., J.